[Federal Register Volume 71, Number 188 (Thursday, September 28, 2006)]
[Notices]
[Pages 56965-56968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15936]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 062206A]


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Navy Operations of Surveillance Towed Array 
Sensor System Low Frequency Active Sonar

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of Receipt of Application; request for comments and 
information.

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SUMMARY: NMFS has received a request from the U.S. Navy for an 
authorization under the Marine Mammal Protection Act (MMPA) to take 
marine mammals, by harassment, incidental to conducting operations of 
Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active 
(LFA) sonar from August 16, 2007 through August 15, 2012. In order to 
promulgate regulations and issue annual Letters of Authorization (LOAs) 
to the Navy, NMFS must determine that these takings will have a 
negligible impact on the affected species and stocks of marine mammals, 
will not have an unmitigable impact on the availability of the species 
or stock(s) for subsistence uses, and must prescribe the means of 
mitigating the potential impact to the lowest level practicable. NMFS 
invites comment on the application and suggestions on the content of 
any future regulations.

DATES: Comments and information must be postmarked no later than 
October 30, 2006.

ADDRESSES: Comments on the application should be addressed to: P. 
Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225. The mailbox address 
for providing e-mail comments is [email protected]. Comments sent 
via e-mail, including all attachments, must not exceed a 10-megabyte 
file size. Please use only one method for commenting.
    A copy of the Navy's 2007 MMPA application and the current SURTASS 
LFA sonar monitoring report may be obtained by writing to the above 
address, by telephoning the contact listed under FOR FURTHER 
INFORMATION CONTACT, or at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. A copy of the Navy's 
Draft Supplemental Environmental Impact Statement (Draft SEIS) may be 
downloaded at the following URL: http://www.surtass-lfa-eis.com/Impactstate05.htm
    Documents cited in this notice may also be viewed, by appointment, 
during regular business hours at this address.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, at 301-
713-2289, ext 128.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce (Secretary) to allow, upon request, the 
incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) if certain findings are made and regulations are issued.
    An authorization may be granted for periods of 5 years or less if 
the Secretary finds that the total taking will have a negligible impact 
on the species or stock(s); will not have an unmitigable adverse impact 
on the availability of the species or stock(s) for subsistence uses; if 
regulations are prescribed setting forth the permissible methods of 
taking and other means of effecting the least practicable impact on 
affected species, stocks and its habitat; and, the requirements 
pertaining to the monitoring and reporting of such taking.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' With respect to military readiness activities, the MMPA 
defines ``harassment'' as:

    (i) any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B harassment].

Summary of Request

    On May 12, 2006, NMFS received an application from the U.S. Navy 
requesting an authorization under section 101(a)(5)(A) of the MMPA for 
the taking of marine mammals by harassment incidental to employment of 
the SURTASS LFA sonar system during training, testing, and routine 
military operations for a period of time not to exceed 5 years, 
beginning on August 16, 2007. The proposed action is the U.S. Navy's 
use of the SURTASS LFA sonar in ocean waters excluding any areas 
necessary to prevent 180-decibel (dB) sound pressure level (SPL) or 
greater within a specific geographic range from shore, in offshore 
biologically important areas during biologically important seasons, and 
in areas necessary to prevent greater than 145-dB SPL at known 
recreational and commercial dive sites. The SURTASS LFA sonar program 
will operate a maximum of 4 ship systems in those regions in which 
SURTASS LFA sonar could potentially operate. During employment of the 
SURTASS LFA sonar system, acoustic signals will be introduced into the 
water column that could potentially affect marine mammals. Because 
marine mammals may be harassed due to noise disturbance incidental to 
the employment of the SURTASS LFA sonar system during training, 
testing, and routine military operations, an authorization under 
section 101(a)(5)(A) of the MMPA is warranted. A copy of the Navy's 
MMPA application is available for public review (see ADDRESSES).

Background

    On July 16, 2002, NMFS published a final rule (67 FR 46712) for the 
taking of marine mammals incidental to operations of SURTASS LFA sonar 
and, on August 16, 2002 issued an LOA to the R/V Cory Chouest. The 
preamble to

[[Page 56966]]

the final rule provides a complete description of the Navy activity, 
NMFS' assessment of the marine mammals that potentially could be 
affected during SURTASS LFA sonar operations, and the mitigation, 
monitoring and research that the Navy has implemented to reduce impacts 
to the lowest level practicable. Please refer to that document for 
detailed information on this activity.
    On August 7, 2002, the Natural Resources Defense Council, the 
Humane Society of the United States and four other environmental 
organizations filed suit against the Navy and NMFS over SURTASS LFA 
sonar use and permitting. Key litigation events are summarized in the 
Navy's Draft SEIS. The Court issued its Opinion and Order on the 
parties' motions for summary judgment in the SURTASS LFA sonar 
litigation on August 26, 2003. The Court found that deficiencies in the 
Navy and NMFS compliance with the MMPA, the Endangered Species Act 
(ESA), and the National Environmental Policy Act (NEPA) warranted 
issuing a tailored permanent injunction; however, a complete ban on the 
use of SURTASS LFA sonar was not warranted. Specifically, the Court 
found that a total ban on the employment of SURTASS LFA sonar would 
interfere with the Navy's ability to ensure military readiness and to 
protect those serving in the military against the threat posed by 
hostile submarines. The Court directed the parties to meet and confer 
on the scope of a tailored permanent injunction, which would allow for 
continued operation of the system with additional mitigation measures. 
This mediation session occurred on September 25, 2003 in San Francisco.
    In June 2003, the second-year (of the five years for which the NMFS 
Final Rule is valid) LOAs were requested from NMFS for the operations 
of SURTASS LFA sonar from both R/V Cory Chouest and USNS IMPECCABLE (T-
AGOS 23) for the period between August 16, 2003 and August 15, 2004. 
For the second year LOAs, the Navy requested operational areas 
authorized under the preliminary injunction. NMFS issued the second 
year LOAs, effective on August 16, 2003. The second year LOAs 
authorized the taking of marine mammals in stipulated portions of the 
Northwest Pacific/Philippine Sea, Sea of Japan, East China Sea, and 
South China Sea with certain year-round and seasonal restrictions. On 
July 7, 2005, the Court amended the permanent injunction to expand the 
potential areas of operation based on real world contingencies, as 
shown in Figure 1-1 in the Navy's MMPA application. Annual LOAs were 
issued to the R/V Cory Chouest and USNS IMPECCABLE on August 16, 2004 
(69 FR 51996, August 24, 2004), August 16, 2005 (70 FR 49914, August 
25, 2005) and August 16, 2006 (71 FR 48537, August 21, 2006).

Description of the Activity

    Existing operational LFA systems are currently installed on two 
SURTASS vessels: R/V Cory Chouest and USNS IMPECCABLE. In addition, the 
Navy plans for the development and introduction of a compact active 
sonar system to be deployed from existing, smaller SURTASS Swath-P 
ships. This smaller system, known as Compact LFA, or CLFA, consists of 
smaller, lighter-weight source elements than the current LFA system, 
and will be compact enough to be installed on the existing SURTASS 
VICTORIOUS Class (T-AGOS 19, 21, and 22) platforms. The operational 
characteristics of the compact system are comparable to the existing 
LFA systems as presented in the Final OEIS/EIS and Draft SEIS. 
Therefore, the potential impacts from CLFA are expected to be similar 
to the effects from the existing SURTASS LFA systems. Three additional 
CLFA systems are planned for the T-AGOS 19, 21, and 22. Figure 1-2 of 
the Navy's MMPA application shows the projected availability of these 
systems. With the planned R/V Cory Chouest retiring in FY 2008, only 
two or three systems will be operational through FY 2010. Early in FY 
2011, the potential exists for four vessels to be operational. At no 
point during the 5-year LOA authorization period are there expected to 
be more than four systems in use, and thus this application considers 
the employment of up to four systems.
    The Navy states that because of uncertainties in the world's 
political climate, a detailed account of future operating locations and 
conditions cannot be predicted. However, in order to assess impacts to 
marine mammal populations, the Navy has developed a nominal annual 
deployment schedule and operational concept based on current LFA 
operations since January 2003 and projected Fleet requirements. As 
illustrated in Table 1-2 of the Navy's MMPA application, SURTASS LFA 
sonar deployment schedule for a single vessel could involve up to 294 
days per year at sea (underway). A nominal at-sea mission will occur 
over a 49-day period, with 40 days of operations and 9 days of transit. 
Based on a 7.5 percent duty cycle (from historical LFA operating 
parameters), an LFA system will actually be transmitting for a maximum 
of 72 hours per 49-day mission and 432 hours per year for each SURTASS 
LFA sonar system in operation. The SURTASS LFA sonar vessel will 
operate independent of, or in conjunction with, other naval air, 
surface or submarine assets. Annually, each vessel will be expected to 
spend approximately 54 days in transit and 240 days performing active 
operations. An estimated 71 days will be spent in port for upkeep and 
repair and crew morale.

National Defense Authorization Act (NDAA)

    On November 24, 2003, the NDAA for Fiscal Year (FY) 2004 (Public 
Law 108-136) became law. Included in this law were amendments to 
Section 101(a)(5) of the MMPA that apply where a ``military readiness 
activity'' is concerned. The term ``military readiness activity'' is 
defined in Public Law 107-314 (16 U.S.C. Sec.  703 note) to include all 
training and operations of the Armed Forces that relate to combat; and 
the adequate and realistic testing of military equipment, vehicles, 
weapons and sensors for proper operation and suitability for combat 
use. NMFS and the Navy have determined that the Navy's SURTASS LFA 
sonar testing and training operations that are the subject of NMFS's 
July 16, 2002, Final Rule constitute a military readiness activity 
because those activities constitute ``training and operations of the 
Armed Forces that relate to combat'' and constitute ``adequate and 
realistic testing of military equipment, vehicles, weapons and sensors 
for proper operation and suitability for combat use.''
    The provisions of NDAA FY04 that relate to SURTASS LFA sonar are 
summarized here:
    (1) Amended the definition of ``harassment'' as it applies to 
military readiness activities (as stated previously here);
    (2) NMFS's determination of ``least practicable adverse impact on 
species or stock'' must include consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity; and,
    (3) Eliminated the ``small numbers'' and ``specified geographic 
region'' requirements from the incidental take permitting process for 
military readiness activities.

Affected Marine Mammal Species

    The Navy has provided detailed descriptions of the marine mammal 
species and stocks that may potentially be affected by operation of 
SURTASS LFA sonar in several documents. These

[[Page 56967]]

include the Navy's 2007 MMPA application, the Draft SEIS, and the Final 
OEIS/EIS. These documents are publically available for viewing and 
downloading (see ADDRESSES). Additional information on marine mammals 
along the U.S. and territorial waters can be found at: http://www.nmfs.noaa.gov/pr/sars/region.htm. Please refer to these documents 
for information on these species.

Potential Impacts to Marine Mammals

    The Navy has provided detailed analyses on the potential impacts on 
whales, dolphins, seals and sea lions in both its MMPA application and 
its Draft SEIS. Potential impacts that are analyzed include: non-
auditory injury, permanent loss of hearing, temporary loss of hearing, 
behavioral change, and masking. As a result of its analysis, the Navy 
believes that impacts to affected marine mammal stocks will be limited 
to Level B (behavioral) harassment and that no serious injury or 
mortality is likely. For a complete description of this analysis please 
refer to the Navy's MMPA application.

Proposed Modifications to the Existing Regulations

    The Navy has proposed two modifications to the current regulations 
governing the incidental take of marine mammals during SURTASS LFA 
sonar operations. These are:
    (1) Establishment of Additional Offshore Biologically Important 
Areas (wherein 180 dB (and higher) sound pressure levels (SPLs) will 
not enter-see Table 6.2 in the Navy's MMPA application); and,
    (2) Increase the authorized transmission frequency from 330 Hz to 
500 Hz (the frequency requirements for CLFA are somewhat higher, but 
still below 500 Hz).

Mitigation and Monitoring

    The Navy proposes to continue to implement the currently required 
mitigation and monitoring requirements under the current regulations 
(50 CFR Part 216 Subpart Q). Table 1 provides an illustration of the 
proposed measures. Detailed information can be found in the Navy's MMPA 
application.

                     Table 1. Summary of Mitigation
------------------------------------------------------------------------
          Mitigation                  Criteria             Actions
------------------------------------------------------------------------
Geographic Restrictions
-------------------------------                     --------------------
22 km (12 nm) from coastline    Sound field below    Delay/suspend
 and offshore biologically       180 dB RL, based     SURTASS LFA sonar
 important areas during          on SPL modeling.     operations.
 biologically important
 seasons outside of 22 km (12
 nm)
------------------------------------------------------------------------
Recreational and commercial     Sound field not to   Delay/suspend
 dive sites (known)              exceed 145 dB RL,    SURTASS LFA sonar
                                 based on SPL         operations.
                                 modeling.
------------------------------------------------------------------------
Monitoring to Prevent Injury to Marine Mammals and Sea Turtles
-------------------------------                     --------------------
Visual Monitoring               Potentially          Notify OIC.
                                 affected species
                                 near the vessel
                                 but outside of the
                                 LFA mitigation and
                                 buffer zones.
                               -----------------------------------------
                                Potentially          Delay/suspend
                                 affected species     SURTASS LFA sonar
                                 sighted within the   operations.
                                 LFA mitigation and
                                 buffer zones.
------------------------------------------------------------------------
Passive Acoustic Monitoring     Potentially          Notify OIC, OIC
                                 affected species     alerts marine
                                 detected.            mammal observers.
------------------------------------------------------------------------
Active Acoustic Monitoring      Contact detected     Notify OIC, OIC
                                 and determined to    alerts marine
                                 have a track that    mammal observers.
                                 would pass within
                                 the LFA mitigation
                                 and buffer zones.
                               -----------------------------------------
                                Potentially          Delay/suspend
                                 affected species     SURTASS LFA sonar
                                 detected inside of   operations.
                                 the LFA mitigation
                                 and buffer zones.
                               -----------------------------------------
                                LFA mitigation and   Begin ramp-up of
                                 buffer zones free    Active Acoustic
                                 of marine mammals.   Monitor Source.
------------------------------------------------------------------------
------------------------------------------------------------------------

Reporting

    As is currently required, the Navy proposes to submit quarterly, 
classified mission reports to NMFS no later than 30 days after the end 
of the quarter beginning on August 16, 2007. Each quarterly, classified 
mission report will include all active-mode missions that have been 
completed during the quarter. Specifically, these reports will include 
dates/times of exercises, location of vessel, LOA province, location of 
the safety and buffer zones in relation to the LFA sonar array, marine 
mammal observations, and records of any delays or suspensions of 
operations. Marine mammal observations will include animal type and/or 
species, number of animals sighted, date and time of observations, type 
of marine mammal detection (visual, passive and/or active sonar), 
bearing and range from the vessel, abnormal behavior (if any), and 
remarks/narrative (as necessary). The report will include the Navy's 
assessment of whether any taking occurred within the SURTASS LFA sonar 
safety and buffer zones and estimates of the percentage of marine 
mammals stocks affected by SURTASS LFA sonar operations (both within 
and outside the safety and buffer zones), using predictive modeling 
based on operating locations, dates/times of operations, system 
characteristics, oceanographic environmental conditions, and animal 
demographics.
    The Navy will also submit an annual, unclassified report to NMFS. 
This report will provide NMFS (and the public) with an unclassified 
summary of the year's quarterly reports and will include

[[Page 56968]]

the Navy's assessment of whether any taking occurred within the SURTASS 
LFA sonar mitigation and buffer zones and estimates of the percentage 
of marine mammal stocks affected by SURTASS LFA sonar operations (both 
within and outside the safety and buffer zones), using predictive 
modeling based on operating locations, dates/times of operations, 
system characteristics, oceanographic environmental conditions, and 
animal demographics. The annual report will also include an analysis of 
the effectiveness of the mitigation measures with recommendations for 
improvements where applicable, an assessment of any long-term effects 
from SURTASS LFA sonar operations, and any discernible or estimated 
cumulative impacts from SURTASS LFA sonar operations.

NEPA

    The Navy completed and released its Draft SEIS to the public for 
review on October 28, 2005 (70 FR 62102). That document was available 
to the public for review until December 28, 2005, but was extended 
until February 10, 2006. NMFS is a cooperating agency in the 
preparation of the Draft SEIS and will either adopt it or prepare its 
own NEPA document before making a determination on the issuance of 
regulations and LOAs for this activity.

Information Solicited

    As this document is being published in conformance with NMFS 
regulations implementing the incidental take program (50 CFR part 216, 
subpart I), NMFS requests interested persons to submit comments, 
information, and suggestions concerning the request and the possible 
structure and content of the regulations to allow the taking. As 
provided by 50 CFR 216.105, NMFS will consider this information in 
developing any proposed regulations to authorize the taking. Because 
this notice contains only a summarization of the proposed Navy action, 
NMFS requests commenters read the Navy MMPA application and Draft OEIS/
EIS on this action prior to submitting comments, as those documents 
contain information necessary to respond appropriately to this action. 
If NMFS proposes regulations to allow this take, interested parties 
will be provided with a 45-day comment period within which to submit 
comments on the proposed rule.

    Dated: September 22, 2006
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E6-15936 Filed 9-27-06; 8:45 am]
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